Villegas v. State

• Decision Date: 17 May 1990
• Docket Number: No. 13-89-009-CR,13-89-009-CR
• Citation: 791 S.W.2d 226
• Parties: Rene Jaques VILLEGAS A/K/A "JAP", Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 226

791 S.W.2d 226

Rene Jaques VILLEGAS A/K/A "JAP", Appellant, v. The STATE of Texas, Appellee.

No. 13-89-009-CR.

Court of Appeals of Texas Corpus Christi.

May 17, 1990.

Mark Alexander, McAllen, for appellant.

Rene Guerra, Dist. Atty., Edinburg, for appellee.

Before NYE, C.J., and BENAVIDES and SEERDEN, JJ.

OPINION

BENAVIDES, Justice.

A jury found Rene Jaques Villegas guilty of capital murder and assessed punishment at life imprisonment in the Texas Department of Corrections. By thirteen points of error, appellant alleges error in all phases of the trial. We affirm the judgment of the trial court.

I. FACTS

The facts of this case are gruesome. About 10 p.m. February 9, 1987, after drinking hard liquor during the day, appellant was dropped off at the house where his aunt and grandmother lived and where he used to live. He entered the residence through a window and, unprovoked, savagely attacked his aunt with his fists and a butter knife. After repeatedly beating his father's sister about the head and the rest of her body, choking her, and stabbing her in numerous places, including her vagina, appellant attempted to drown her in her own bathtub. ¹

Appellant left his aunt in the bathtub and ransacked her house, taking jewelry, clothing, various bank papers and her car. He drove her car to Mission where, between 12 p.m. and 1 a.m., he and at least one other individual stripped the car and abandoned it near a canal.

The next morning, February 10, 1987, the McAllen police acted on a citizen's tip and went to appellant's aunt's house to investigate possible foul play. Appellant's aunt was discovered dead in the bathtub. Physical evidence in the form of photographs, fingerprints, shoe prints, clothing, blood samples and hair samples were collected at the house.

At about the same time the house was being searched, several of appellant's friends reported appellant's actions and his admission made to them regarding what he had done to his aunt to the Mission police and to the McAllen police. A warrant for appellant's arrest for his aunt's murder was issued after corroborating evidence was discovered.

Appellant was arrested late that day, and by that time had seen and told at least eight people that he had killed his aunt. Some of these witnesses testified that appellant was calm when he told them about the events of the killing. At the time of his arrest, appellant had scratches on his face and bruises on his neck and chest. He had told several people that his aunt had scratched him in the face when he grabbed her during his attack on her. His clothes and shoes had blood stains on them and the blood was the same type as his aunt's. Fingerprints which matched appellant's were found at his aunt's house and in her abandoned car. Bloody footprints with a shoe pattern resembling that of appellant's were also found at his aunt's house.

Immediately after his arrest, appellant was transported to the McAllen police office where, within thirty minutes after being advised of his rights, he confessed to killing his aunt and taking her car. The next morning appellant was arraigned and subsequently made a second confession which clarified his first. At the time he gave the second confession, appellant consented to giving hair, skin, blood, and saliva samples, which were subsequently obtained.

We address appellant's points of error in chronological groups.

II. PRE-TRIAL MOTIONS

Appellant asserts two points of error concerning pre-trial matters. By point of error number six, appellant contends that the trial court committed reversible error in not requiring the State to turn over the affidavits shown to the Grand Jury for his inspection. At a hearing on various motions, appellant orally moved to have the State produce witness affidavits which were produced to the grand jury. The trial judge denied his motion. Appellant subsequently filed a written version of his oral motion.

Appellant argues that his various Constitutional rights are personal since they are required to be waived by him if waiver occurs, and that he has a personal right to see all evidence against him, including the affidavits shown to the grand jury. Appellant attempts to separate his right to view the evidence from that of his attorneys and asserts that he personally should get copies from the State. Appellant's attorneys were allowed to view these affidavits and witnesses' statements.

An accused is not ordinarily entitled to inspect grand jury testimony to ascertain evidence the prosecution has or for discovery in general. Garcia v. State, 454 S.W.2d 400, 403 (Tex.Crim.App.1970). This is true whether the request is made before trial or during trial. Id. The production of grand jury testimony lies within the sound discretion of the trial court, which may permit the accused to inspect such testimony when "some special reason" exists or where a "particularized need" is shown so as to outweigh the traditional policy of grand jury secrecy. McManus v. State, 591 S.W.2d 505, 523 (Tex.Crim.App.1979); see also Tex.Code Crim.Proc.Ann. art. 39.14 (Vernon 1979). If the prosecutor uses or introduces portions of the grand jury testimony during the course of the trial the defense is entitled to inspect and use such testimony that covers the same subject involved in the portions used and introduced by the prosecution. Garcia, 454 S.W.2d at 403.

The State allowed appellant's attorneys to review the affidavits, and we decline to separate appellant's rights from those of his attorneys. We assume that since counsel reviewed the affidavits, that appellant was afforded the benefits of such a review in his legal defense. No argument is presented that he was not afforded the benefits of counsel's review or that counsel withheld the contents or substance of the affidavits from appellant. In any event, appellant did not state any "special reason" or any "particularized need" for the witness affidavits at the hearing or in his written motion nor does he assert one on appeal. Appellant's sixth point of error is overruled.

Appellant's point of error number seven contends that the trial court committed reversible error when it failed to dismiss the defendant's appointed trial counsel on the defendant's pro se motion. Appellant filed a pro se motion in which he requested that the court dismiss his two appointed attorneys and appoint two attorneys of his choice. After a hearing on this motion, the trial court denied it.

Appellant argues that he was forced to accept two attorneys he felt had not adequately prepared his case, who were not interested in defending him with zeal and who did not believe him. Appellant further urges that the above reasons are those which the court should have used to dismiss his attorneys. Appellant's alternative argument is that he should have been allowed to waive counsel and proceed on his own. Appellant, however, never advised the judge that he wanted to represent himself; he only asked the judge for different attorneys.

Appellant has the burden of proving that he is entitled to a change in counsel. Malcolm v. State, 628 S.W.2d 790, 791 (Tex.Crim.App.1982). The record indicates that appellant did not offer any evidence in support of his position that the attorneys appointed to represent him should be dismissed. In fact, the evidence at the hearing strongly supported the retention of appellant's court-appointed counsel.

When the record demonstrates that a defendant's court-appointed attorney provided adequate representation for him, then he was not entitled to a change of attorneys. Malcolm, 628 S.W.2d at 791-92. The record shows a vigorous and competent defense, notwithstanding the tremendous evidence against appellant. Appellant's seventh point of error is overruled.

III. GUILT PHASE

Appellant raises nine points of error concerning the guilt phase of his trial. By one point of error, appellant challenges the trial court's denial of a Motion for Mistrial; by five points of error, appellant challenges the admission of various types of evidence; by two points of error, appellant challenges parts of the jury charge; and by one point of error, appellant challenges the State's jury argument.

MOTION FOR MISTRIAL

Appellant claims error in the trial court's failure to grant a motion for mistrial after a State's witness, who testified on direct examination, refused to testify on cross-examination. Appellant contends that this violated his rights to confrontation and to effective counsel under the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Texas Constitution.

On September 12, 1988, the State called Juan Muniz, one of appellant's friends, as its first witness. Muniz testified on direct examination that he was one of the individuals who saw appellant during the night after appellant's aunt was killed. He also testified to what appellant told him and several others about killing his aunt and how appellant's clothes and face appeared. When Muniz began testifying about what was done with appellant's aunt's car, the court admonished him that he may be testifying regarding matters that may incriminate him and that he had a right to remain silent. Upon Muniz's request, an attorney was appointed to represent him. Although Muniz was offered immunity from prosecution in exchange for his testimony, his attorney advised him not to testify and to claim protection from testifying under the Fifth Amendment of the United States Constitution. Muniz did so.

Upon re-examination, on September 13, 1988, Muniz continued to refuse to answer any questions. Appellant's attorney moved for a mistrial on Constitutional grounds. The motion for mistrial was denied.

Muniz was recalled to the witness stand on September 22, 1988, and after a further refusal to testify, appellant's attorney preserved Muniz's written statements to the police in a bill of exception as evidence of what Muniz's testimony would have been. Appellant again...